Robert P. Burns

 

On his book The Death of the American Trial

Cover Interview of June 01, 2009

In a nutshell

Despite what TV dramas may suggest, the American trial has become an endangered species.  In 2002, less than 2 percent of civil cases ended at trial, down from 12 percent forty years earlier and 25 percent in the 1930’s.  The percentage of criminal cases going to trial declined almost 70% between 1976 and 2002, to less than 5%.  Though the numbers of cases have increased, they are almost always now “disposed of” – a telling metaphor – without trial.  Judges decide more and more often on a purely paper record.  Legal processes look more and more bureaucratic.  The costs of and hurdles in front of getting “my day in court” force more citizens to accept “offers they can’t refuse.”

We have recently relearned to our grief that our major public institutions are not benignly self-regulating.  The Death of the American Trial is an appeal, addressed to all Americans, to reverse this recent catastrophic collapse before we lose one of our public culture’s most important achievements.

As one federal judge put it, the trial is the “canary in the mineshaft; if it goes, if our people lose their inherited right to do justice in court, other democratic institutions will lose breath too.”  More ominously, another has warned that “democracy dies behind closed doors.”  What our officials and leaders do behind closed doors must be reviewable in the sunlight of the public trial.